Re: answering summons...Boadicea

Posted by Boadicea (66.149.179.202) on May 13, 2004 at 19:01:50:

In Reply to: answering summons...Boadicea posted by trinadad on May 13, 2004 at 12:25:05:

You may still be ok *if* you are very vigilant, and depending on how you answered each allegation.

Have they filed and answer to your answer yet? Some small claims courts don't allow motions before the trial, in which case you may not get anything before the trial but a denial of your affirmative defenses.

It's possible that they may be ready to make a motion to dismiss based on your exhibit, but don't count on it. Be prepared for the plaintiff's lawyer to make a motion requesting summary judgment on the basis of your admission.

If they do, you MUST IMMEDIATELY OBJECT to the motion on the basis that there are other issues of law and equity to be decided (contested amount, laches, expired SOL ---the latter two are essentially the same, etc.) and state any of your other affirmative defenses, such as you were only an authorized user and therefore have no legal liability, or that no proof of the debt exists in the form of a signed contract.

I, too, had a copy of an old credit report that showed that the alleged debt was beyond the SOL, but I never needed to produce it. If you claim insufficient knowledge or deny their allegations, you put the ball back in their court. They have to prove the debt is yours and that they may legally collect.

Having a credit report with the debt listed is NOT proof in itself that you are or ever were legally liable. For instance, without a signed application, how would the court know that you weren't merely an authorized user? Or that the CRA made a mistake? Happens all the time. But your credit report may well be acceptable proof that the account was beyond the SOL.

Good luck to you! Don't give in, even if it seems you may have tripped yourself up. Resolve not to pay a red cent until you've exhausted all legal remedies. Force the CA to prove that they have the right to collect. They may not have as much proof as you originally thought.

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